RIDGE v BALDWIN NO.1

Justice should not only be done, but should manifestly and undoubtedly be seen to be done’ is a phrase too often overlooked by those seeking legal remedy; and so, when fear and prejudice cloud the flow of proceedings, the outcome is one left wanting, when on this occasion, the alleged actions of a police employee provoke a one-sided evaluation of accounts.

In 1925, the appellant joined Brighton police force where he was regularly promoted until reaching the position of chief constable; while at this time, the police were overlooked by the watch committee, who were endowed with powers short of that held by the Secretary of State.

In 1957, and at a time close to the point of his retirement, the appellant was embroiled in a conspiracy charge involving himself and four other officers; upon which, the the respondent watch committee took steps to suspend him from service under the terms of the Police Discipline (Deputy Chief Constables, Assistant Chief Constables and Chief Constables) Regulations 1952, while allowing him full pay under regulation 15 of the same legal instrument.

Having been tried in the Central Criminal Court, the appellant was acquitted of the charges brought against him; after which, his solicitor requested he be reinstated. At the summation of the trial, the presiding judge passed comment as to the qualities shown by the appellant when carrying out his role, by saying to those sentenced:

“[N]either of you had that professional and moral leadership which both of you should have had and were entitled to expect from the chief constable of Brighton, now acquitted…”

Within a month, the appellant was tried for a second indictment concerning the receipt of £20 from a known criminal, to which he pleaded not guilty, and for which the prosecution offered no evidence with which to convict; whereupon the judge commented again:

“This prospect and this risk will remain until a leader is given to the force who will be a new influence, and who will set a different example from that which has lately obtained.”

The next day, the appellant was informed of a watch committee meeting yet was extended no invitation, after which he received a letter informing him of his dismissal.

The reasons cited were based upon numerous unfounded statements by members of both the committee and the town clerk, both suggesting his negligence in the discharge of duty, thus being unfit for purpose, and that the decision had been based upon conferred powers of section 191(4) of the Municipal Corporations Act 1882

That same day, the appellant’s solicitor wrote to the Secretary of State contending that the dismissal was unlawful, an affront to the processes of natural justice, and that they were appealing under the Police (Appeals) Act 1927, on grounds that the terms of the dismissal failed to disclose specific details that in turn were subject to his right to provide a statement of defence under regulation 18 of SI 1952 No.1706.

In such circumstances, there must also be a tribunal hearing, whereupon submissions by both parties must be evaluated and assessed before the watch committee can, on proof of the evidence, decide the appropriate punishment where justified.

By the provisions of the Police Pensions Act 1948, it was then the duty of the Secretary of State to determine if those dismissed were entitled to their pensions where relevant, and on this occasion the appellant was asking for such rights instead of reinstatement.

Having been brought before the courts, the first judge held that that the dismissal was null and void, but subject to the final decision of the Secretary of State, who had at such time, dismissed the appellant’s appeal, whereupon a similar fate was found in the Court of Appeal.

Presented for a final time to the House of Lords, the facts were explored to a greater extent; at which point, it was held by majority that the respondents’ were obliged under section 4(1) of the Police Act 1919, to provide the appellant with an opportunity to defend himself against the claims proposed yet unproven, and that to circumvent the legal procedures expected, was tantamount to a violation of natural justice and subsequently void of merit.

It was for that reason, that the appeal was allowed and the matter referred back to the courts for revisitation of the facts, with note that the appellant sought only his full pension rights and not a return to work, while the court reminded the parties that:

“[T]he essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet…”

M v HOME OFFICE

Administrative confusion and errors in judgment, were the foundations of a refused application for asylum that at first glance appeared false, until professional evidence revealed otherwise.

It was only after a collection of ministerial and administrative mishaps, that the refugee brought civil action against the Home Secretary and the Crown.

In autumn of 1990, an African citizen arrived in the United Kingdom, claiming asylum on grounds that he had been a victim of torture while working as a school teacher in Zaire.

His story, while sounding hard to imagine, was later corroborated by the attending doctor at the Medical Foundation for the Care of Victims of Torture, whose report stated:

“I found nothing in his history or its presentation to suggest that it was in any way unreliable. His description of prison conditions has been confirmed innumerable times by other people who have experienced them. The scars he bears are entirely compatible with the causes he ascribes to them. He is suffering a degree of deafness and spinal trouble quite likely to have arisen from his mistreatment. Psychologically he describes symptoms very likely to arise from the experiences he described. He shows some evidence of depression and his continued detention can only aggravate these symptoms and he could easily become a serious suicide risk.”

Prior to this disclosure, the Home Office had rejected his previous two submissions and plans were set in motion to return him back to Zaire, whereupon he had applied for judicial review; after which time, the deportation arrangements were cancelled in lieu of his appearance before the court.

Two months later, the review application was refused; at which point, the appellant applied to the Court of Appeal. 

Unfortunately, his solicitors failed to lodge the application, therefore it went unregistered, and while the doctor’s report provided sufficient weight to support his claim, it was not received by the Home Office until a day before his planned removal from the country.

By luck rather than judgment, the Court of Appeal had already made time to hear the case on the day of deportation, but dismissed the application while unaware of the report, or that the applicant was changing solicitors, on grounds that his case had been misrepresented, and that a new application for judicial review was being lodged.

Having been heard before Garland J literally thirty minutes before the assigned plane was due to depart, it was decided that there needed to be further provisions in place to evaluate the matter fairly, so proceedings were adjourned in favour of another session the following day.

This led to the cancelling of the flight by the appellant’s solicitor who had telephoned the Home Office accordingly. During this period, Garland J interpreted that the Home Office had expressed permission for the appellant to remain in the country and explained:

 “[T]he application for leave to move for judicial review be adjourned on the undertaking by counsel for the Home Office . . . that the applicant would not be removed from the United Kingdom to Zaire.”

Garland J

For one reason or another, the information was never relayed to those accompanying the appellant and he was deported to Paris en route to his home country.

Around the time the appellant was leaving there had been a meeting between the Parliamentary Under Secretary of State to the Home Office, Home Office officials and the appellant’s representing solicitor, yet no intervening action had been taken with regard to the appellant’s departure.

This culminated in the appellant’s solicitor meeting with Garland J in the midnight hours, whereupon the judge issued a written order requesting the appellant’s immediate return and interim protection.

Notice of this order then reached numerous state departments and their representatives, including the Home Secretary Kenneth Baker who while acting upon legal advice, declared the order beyond the jurisdiction of the judge (ultra vires), and that an appeal would be lodged against the order on grounds that there was insufficient cause for the appellant to receive asylum and return to the United Kingdom.

It was there that the judge held the Home Secretary in contempt of court and declared his actions (or inactions) a breach of statutory duty.

Legal precedence of injunctions or orders served against either the Crown or their representatives dates back to Feather v The Queen, where Cockburn CJ remarked:

“As the Sovereign cannot authorise wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown.”

FEATHER v THE QUEEN

This continued until the Crown Proceedings Act 1947, whereupon section 1 enabled action against the Crown by petition of right, while s.2 allowed tortious claims upon those identifiable under the Crown’s protection.

Section 17 of Part II of the 1947 Act further provided a list of those Ministers and their departments to allow civil claims against the department or the position held by those subject to the action.

Section 21(a) of the 1947 Act also explained that where an injunction or specific performance was sought, the courts would instead allow declaratory rights for those claiming, as to do otherwise would contradict the principle that the Crown can do no wrong.

Under the powers of section 31 of the Supreme Court Act 1981 RSC Ord.53 allowed for judicial review, whereupon section 37(1) of the 1981 Act provided that:

“The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.”

Section 37(1) Supreme Court Act 1981

This translated that irrespective of the violations argued by the Home Secretary, the intentions of Ord.53 were such that allowed the courts to grant interim relief where appropriate, as further expressed in The Supreme Court Practice 1993, which read:

“Where the case is so urgent as to justify it, [the judge] could grant an interlocutory injunction or other interim relief pending the hearing of the application for leave to move for judicial review. But, if the judge has refused leave to move for judicial review he is functus officio and has no jurisdiction to grant any form of interim relief. The application for an interlocutory injunction or other interim relief could, however, be renewed before the Court of Appeal along with the renewal of the application for leave to move for judicial review.”

Having appealed against the charge of contempt, the Court of Appeal held that the Crown, a government department or a Minister were exempt from contempt; whereupon the case was presented to the House of Lords.

Here it was declared that Garland J had been acting well within his judicial powers throughout, and that in consideration of the limited knowledge held by the Home Secretary, it was only reasonable that the charge of contempt was applicable to the position held, rather than that of his own personal acts; at which point, the Home Office appeal was dismissed subject to amendments, while the House reminded the parties that:

“[W]hile a citizen is entitled to obtain injunctive relief (including interim relief) against the Crown or an officer of the Crown to protect his interests under Community law he cannot do so in respect of his other interests which may be just as important.”

AGIP (AFRICA) LTD V JACKSON

Knowing receipt, constructive trustees and the effectiveness of traceability through multiple recipients form the basis of this Appeal Court hearing when the chief accountant of an oil drilling company systematically defrauded his employer of over $10m during a period of just two years.

This was carried out through a network of directors and business partners acting as authorised signatories for the sham companies, and who once a small number of deposits were made, closed the accounts, before opening new accounts that would then transfer the funds to a central account held in France.

This account belonged to a company that presented itself as a jewellery supplier, and which was owned by a French lawyer, who was the head of the fraudulent operation.

Party to this, was the manager of Lloyd’s Bank Holborn Street, whose role it was to receive funds from the chief accountant through his employer’s bank on a regular basis, before awaiting instructions as to which of the seven accounts the funds were to be transferred.

It was only after a money order destined for a shipping container firm was fraudulently altered, that the scheme became apparent and proceedings commenced.

In the first hearing, the respondent firm sued for payment under mistake of fact, and claimed that recovery was due either by the bank, or the account holders, who themselves took receipt of the funds under knowing deceit.

While relying upon the traceability of the monies paid out, it was held by the court that there had been too many displacements in both time and transactions to establish a clear path, therefore recovery under common law was too remote; however, when turning to equity the issue took an another form altogether.

While tracing through equity requires evidence of a fiduciary relationship, the chief accountant had by extension, held a fiduciary role; and so, it fell to the Court of Appeal to first explore knowing receipt and knowing assistance.

Here, it was held that while the appellants received the funds on behalf of their clients, they did so in the knowledge that the money had been obtained through fraud, and so for that reason were liable as constructive trustees for the respondent; particularly as no real effort was made to return the money once notification had been made by the issuing bank, while the court reminded the parties that:

“A person may be liable, even though he does not himself receive the trust property, if he knowingly assists in a fraudulent design on the part of a trustee (including a constructive trustee). Liability under this head is not related to the receipt of trust property by the person sought to be made liable…”

HOLWELL SECURITIES v HUGHES

Conveyance of property and the requisite methods of notice when accepting an offer are clearly defined under section 196 of the Law of Property Act 1925, so when a buyer elected to take advantage of an option to purchase, they did so in a way that flirted with the prescribed method yet failed to secure the bargain, despite arguments to the contrary.

Having decided to sell his home, the respondent wrote to the appellants setting out an option to purchase, which expired within a six-month period, while the specific terms of the offer outlined in clause 2, stated clearly that:

“The said option shall be exercisable by notice in writing to the intending vendor at any time within six months from the date hereof…”

Contrastingly, section 196(4) of the Law of Property Act 1925, also explains that:

“Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”

Law of Property Act 1925

And so, on this occasion the appellants solicitors drafted a written acceptance of the offer, before hand delivering it to the respondent’s solicitors, while noting within the correspondence that a copy of the written notice of acceptance and a deposit cheque had also been posted to the respondent’s home. 

After receiving the letter, the solicitors telephoned the respondent to advise him they had received the notice and that a copy of it was on its way to him, whereupon he explained that he had already made travel plans; and so, having been instructed by his solicitors to leave despite the expected letter, he vacated his home for a number of days.

After being franked and handed to the post-office, the letter failed to arrive at the respondent’s home; hence, the appellants sought legal action to secure the property, on grounds that a contract for both sale and purchase had been executed, irrespective of whether the posted letter had arrived, while it was also argued that the oral communication between the solicitors and the respondent further confirmed acceptance of the offer, when factoring in the solicitors possession of the letter.

In the first instance, the appellants relied upon Henthorn v Fraser; in which, the Court of Appeal held that:

“Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted.”

Henthorn v Fraser

However, the court ruled against them, before the Court of Appeal overruled and distinguished Henthorn in light of an absence of expressed postal methods expressed within the purchase option.

And so, dismissing the appeal on grounds that failure of the respondent to physically take receipt and read the notice became fatal to any claim of right to buy, the court reminded the parties that:

“If a notice is to be of any value it must be an intimation to someone. A notice which cannot impinge on anyone’s mind is not functioning as such.”

ESSO PETROLEUM v MARDON

Prior to the Misrepresentation Act 1967 ,many cases involving mistruths and false inducements relied upon rules of collateral warranty and negligent misrepresentation to establish liability; however, on this occasion an international oil company was betrayed by their own haste when attempting to victimise a willing, but inexperienced employee.

In 1961, the cross-appellants looked to construct a new filling station within the busy streets of Southport; and so, having established the location and calculated the potential value of business, it was agreed that once opened, the station could very well expect to turnover around 200,000 gallons of petrol per year within its first three years of trading. 

With such positive projections, the cross-appellants purchased the site and began work; however, during the planning permission stage they were delivered an unexpected blow when the local authority expressed that the petrol pumps were not permitted to face the road, but were instead to be positioned at the rear of the building.

This unexpected design change heavily reduced their previous calculations; however, undeterred they sought to recruit a leaseholder for the site; and so, after a successful interview, the appellant was conditionally offered the post, while subject to rents based upon the now unrealistic sales volumes.

However, during his interview the appellant queried the figures presented, while the cross-appellants argued there was no cause for concern and that the original projections remained reliable.

Despite his concerns, the appellant accepted the position, before working tirelessly for two years, until faced with financial ruin after losing money from the severely reduced sales, considerable personal investment and a sizeable overdraft no longer repayable, he approached the cross-appellants with every intention to quit; whereupon, they agreed to reduce the rent and offer bonus payments from the sale of petrol in order to offset his losses. 

As an act of continued faith, the appellant agreed to honour a twelve-month contract; however, his circumstances continued to deteriorate; and despite the cross-appellants offering him a more profitable station, their support diminished until the arrangement became unsustainable; and yet, in 1966, the cross-appellants issued a writ for non-payment of petrol supplied during their working relationship.

Naturally shocked and angered, the appellant counter-claimed for damages caused through the loss of earnings, damage to his health, lost opportunities through his efforts to make the site a success, breach of warranty through the misleading statements made in relation to sales turnover, negligent misrepresentation and the inducement to take employment where the outcome was never going to be the one presented during his interview.

In the first instance, the Court of the Queen’s Bench held that the cross-appellants comments were tantamount to opinions and not warranties, but that the claim for negligent misrepresentation was enforceable until the date of the revised employment contract in 1964.

In the Court of Appeal, the appellant relied upon Hedley Byrne & Co Ltd v Heller & Partners Ltd; in which, the House of Lords held that:

“[I]f someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference.”

Hedley Byrne & Co Ltd v Heller & Partners Ltd

And so, having examined the finer points of collateral warranty and the limitations of contractual breaches, the Court unanimously upheld the appeal, on grounds that the flow of damages were unmistakably linked to the claims made; and that remoteness could not stand when factoring in the sources of revenue used by the appellant when trying so hard to keep the station afloat, while finally clarifying that:

“[I]f a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another be it advice, information or opinion with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable.”

CENTRAL LONDON PROPERTY TRUST v HIGH TREES HOUSE

Equity regards as done that which ought to be done’ while in this instance, the maxim is perfectly suited to the exploitative coloration of a business agreement; when in September 1937, a parent company and subsidiary entered into a written lease agreement concerning a newly built block of flats.

Shortly after the outbreak of World War II, the buildings became partially occupied due to the risk of bombing; and so, in order to keep the relationship profitable and fair, the claimants agreed to reduce the rent from 2500l to 1250l per annum.

Yet, while the rent reduction was put in writing, it failed to express the end of the revision, despite the original lease agreement running for a period of ninety-nine years.

Although the defendants enjoyed the reduced rent up to December 1945, despite the buildings now enjoying full occupancy with many tenants now paying higher rents than those initially agreed; the death of the parent company’s owner revealed the oversight before the claimant and surviving business partner sought to recover rent arrears to the sum of 625l for the period between 29 September 1945 and 25 December 1945, while the defendants argued that the letter containing the reduced rent constituted a legally binding and thus enforceable contract for the remainder of the lease.

Referring to the binding effects of a promise, the court of the King’s Bench quickly balanced the probability of a breach where an agreement to reduce rents was challenged.

However, on this occasion the court upheld the claim on grounds that when agreeing to the reduce the rent, it had been undertaken with mind to the onset of war, therefore no reasonable person would have entered into an arrangement where one party would unlawfully profit at the expense of another, while reminding the parties that:

“[A] promise intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply.”

BRISTOL AND WEST BUILDING SOCIETY v MOTHEW

A potential breach of fiduciary duty proves central to a solicitor’s misgivings, when for atypical reasons a lender sought recovery of their loss through equitable principles after other options failed.

In the late 1980s, the respondents entered into a mortgage arrangement with a couple looking to secure a second property for £73,000; however, due to market instability, the respondents expressed that the £59,000 loaned was subject to the mortgagors paying the balance of the property purchase from existing capital to reduce the risk of default; after which, the acting appellant solicitor knowingly agreed to undertake the conveyance and provide a full report as contained in their contract. 

Prior to completion of the purchase, the mortgagors took out a small charge against their existing property for £3,350 in order to raise the funds needed to secure the mortgage and aware that the debt would be secured against the new house; and yet, the appellant continued with the purchase without reporting the change in financial circumstances.

Following a successful transaction, the mortgagors honoured only a handful of repayments before lapsing into default; whereupon, the new house was sold as part of the repossession process; however, the property crash had diminished the property’s value short of satisfying the debt by £6,000, therefore the respondents sought equitable damages from the solicitor on grounds of breach of fiduciary duty through non-disclosure of the loan terms.

In this instance, the court ruled in favour of the respondents and awarded damages to the effect of £59,000, less the funds raised from the sale; whereupon, the appellant challenged the judgment in the Court of Appeal.

Here, the court upheld the appeal on grounds that appellant’s oversight did not constitute a breach of fiduciary duty to either party as they had been consciously acting in good faith toward both throughout the disposition.

This translated that any lapse of skill or appreciation was accidental and not premeditated, as required under the rules of equity, while the Court also reminded the parties that:

“[I]f a fiduciary is properly acting for two principals with potentially conflicting interests he must act in good faith in the interests of each and must not act with the intention of furthering the interests of one principal to the prejudice of those of the other…”

WHEELDON v BURROWS

Derogation from grant’ and the conclusive nature of conveyances were judicially clarified when a landowner divided his estate into two distinct plots, before individually auctioning them to separate purchasers under identical contracts; whereupon, litigation commenced over their right to enjoy both privacy and right to light.

With a brick wall dividing the two plots, the second sale left the respondent with a brick building situated fairly close to the wall with three windows facing the first plot but with  space enough to allow natural light to pass through them, and while both contracts mirrored one another, neither included any express reservations aside from a vague stipulation that the first lot was subject to a favourable right for the purchasers and occupiers of the second plot for a indeterminable period.

Roughly five years later, the appellant erected a fence obscuring the respondent’s view when using his workshop, which prompted his demolition of the obstruction on principle that when taking ownership of the property, it was under an implied easement inherited from the vendor and therefore lawfully enforceable; however, this resulted in litigation; in which, the court noted how the vendor had failed to include any express reservation to the two parties; and so, awarded in favour of the appellant and ordered an injunction to prevent further trespasses.

Challenged in the Court of Appeal, the Court merely upheld the previous judgment on grounds that should English law adopt a view that implied rights and reservations were automatic to a conveyance, the rights of ownership and peaceful use and enjoyment of land would be violated beyond all reason, while reminding the parties that:

“[N]o implication can be made of a reservation of an easement to the grantor, although there may be an implication of a grant to the grantee.”

TOMLINSON v CONGLETON BOROUGH COUNCIL

Reckless endangerment and the scope of relevant statute, prove the nucleus of a case where the civil liberties of the general public and a local authority’s duty of care ran risk of judicial pollution when a life-altering injury led to a damages claim.

Purpose-built from derelict land, the 14-acre Brereton Heath Country Park was home to a popular lake known as the ‘mere’, and although the appeal of the lake drew over 160,000 visitors a year, the controlling borough and local authorities had prohibited swimming through the presence of warning signs, leaflet distribution, lifebelts, throwing lines and constant supervision by park rangers, despite flagrant ignorance by the a majority of the attending public.

Unfortunately, on this occasion the 18 year-old respondent elected to stand in little over two feet of water before proceeding to dive in, whereupon he struck his head on the sandy bottom and broke the fifth vertebrae in his neck.

Now facing life as a tetraplegic, the respondent sought damages from the local authority under the Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984 on grounds that a duty of care was owed as both a trespasser and park visitor.

For clarity section 2(2) of the 1957 Act stated that:

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

Occupiers’ Liability Act 1957

While s.2(4) explained that:

“In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe…”

Occupiers’ Liability Act 1957

However, in 1976 the Law Commission gave recommendation to a statutory duty of care for trespassers as was given effect in section 1(1) of the 1984 Act s.1(1) while sections 1(5) and 1(6) further read that:

“(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.

(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

Occupiers’ Liability Act 1984

This translated that where no award was found under the first Act, then the same would apply by extension to the second, while leading authority for the conversion from visitor to trespasser was found in Hillen v ICI (Alkali) Ltd; in which, the House of Lords had held that:

“So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.”

Hillen v ICI (Akali) Ltd

And so, given the fact that swimming was overtly and historically prohibited, the respondent sought remedy as a trespasser with claims that the water had muddied his view of the bottom, whereupon mention was made to Whyte v Redland Aggregates Ltdin which the Court of Appeal had explained that:

“[T]he occupier of land containing or bordered by the river, the seashore, the pond or the gravel pit, does not have to warn of uneven surfaces below the water. Such surfaces are by their nature quite likely to be uneven. Diving where you cannot see the bottom clearly enough to know that it is safe to dive is dangerous unless you have made sure, by reconnaissance or otherwise, that the diving is safe, ie, that there is adequate depth at the place where you choose to dive. In those circumstances, the dangers of there being an uneven surface in an area where you cannot plainly see the bottom are too plain to require a specific warning and, accordingly, there is no such duty to warn…”

Whyte v Redland Aggregates Ltd

In the first instance, the judge held that the lake simply wasn’t dangerous enough to warrant local authority liability; and so, dismissed the claim, before the Court of Appeal extended the occupiers liability beyond one of reasonable limits and awarded damages.

However, under challenge the House of Lords fully considered the accountability of the respondent, before reversing the previous judgment and restoring the original findings  on grounds that the principle that individual risk-taking in the knowledge of visible danger was incumbent upon the owner, was counter-productive inasmuch as failure to acknowledge warnings was not a precursor for liability when the claimant suffers harm, whereupon the House reminded the parties that:

“[L]ocal authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers.”

CAMPBELL v MIRROR GROUP NEWSPAPERS (MGN)

Convention principles and the juxtaposition between public interest and individual  privacy lie central to a clamant’s case when the needs of a known supermodel are considered secondary to the public knowledge of her drug addiction, thus sparking fierce debate as to where the lines of journalistic privilege and private health ought to be drawn.

Following the appellant’s prolonged public denial, she was rushed to hospital for emergency treatment in what was described as an allergic reaction to antibiotics, however a few months later the appellant was photographed outside a known ‘Narcotics Anonymous’ venue before a newspaper article included a number of those images under the title ‘Naomi: I am a drug addict’; in which, the publication revealed that despite  repeated protests, the appellant was in fact a long-term narcotics user, and that in a battle to overcome her addiction, she had enrolled into a self-help programme. 

Unfortunately, one of the images had captured the sign of a well-known café, which allowed readers to know where she may be found and the article text revealed how often she might be attending, while prior to its release, the newspaper editor had contacted the appellant’s agent, whereupon they were told that the images proved a violation of the appellant’s right to privacy and confidentiality in relation the anonymous nature of her chosen therapy, and yet the respondents ran the story and litigation followed soon after. 

In the first hearing, the appellant claimed for breach of confidence and sought damages under the Data Protection Act 1998, whereupon she was awarded a total of £3,500, after which the Court of Appeal reversed and discharged the award before the House of Lords examined article 8(2) of the Human Rights Act 1998, which reads that:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, of for the protection of the rights and freedoms of others.”

Human Rights Act 1998

And article 10(2), which reads that:

“The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalities as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protections of the reputation or rights of others, for preventing the disclosure of information received in confidence, of for maintaining the authority and impartiality of the judiciary.”

Human Rights Act 1998

While noting how in Attorney-General v Guardian Newspapers Ltd (No 2) they had held that:

“[A] duty of confidence arises when confidential information comes to the knowledge of a person . . . in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the e­ffect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.”

Attorney-General v Guardian Newspapers Ltd (No 2)

Before the House further noted how clause 3(i) of the Editors’ Code of Practice of the Press Complaints Commission provides that:

“(iii) It is unacceptable to photograph individuals in private places without their consent. Note – Private places are public or private property where there is a reasonable expectation of privacy.”

However, the House also referred to Bladet Tromsø and Stensaas v Norway, in which the European Court of Human Rights had held that:

“Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart in a manner consistent with its obligations and responsibilities information and ideas on all matters of public interest.”

Bladet Tromsø and Stensaas v Norway

Which was a position concurrent with section 12(4) of the HRA 1998, which reads that:

“The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the pubic interest for the material to be published; (b) any relevant privacy code.”

Human Rights Act 1998

And so, by embracing both elements to the argument, the House upheld the appeal on grounds that clandestine nature of ‘Narcotics Anonymous’ protected the needs and identities of those attending, thus when the respondents gained unauthorised access to the appellant’s treatment, they did so in the knowledge that it represented no less than a violation of her article 8 rights, whereupon the House reminded the parties that:

“Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. The decisions that are then taken are open to review by the court.”

Book your Free Consultation